In re Marriage of Vondra

2016 IL App (1st) 150793, 59 N.E.3d 840

• Court: Appellate Court of Illinois
• Decided: July 18, 2016
• Docket: 1-15-0793
• Status: Unpublished

Opinion

2016 IL App (1st) 150793

FIRST DIVISION July 18, 2016

No. 1-15-0793

In re MARRIAGE OF ) Appeal from the ) Circuit Court of DAVID VONDRA, ) Cook County. ) Petitioner-Appellee, ) ) and ) ) No. 10 D 10580 MIKA J. VONDRA, ) (consolidated with) ) 12 CH 06686 Respondent-Appellant. ) _________________________________________ ) )

(Eugenia Sabadaszka, Plaintiff; and David ) Vondra, Individually and as Trustee of ) Honorable the David Vondra Revocable Trust, ) Edward A. Arce, Dated November 20, 2007, Defendant). ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion.

Presiding Justice Cunningham and Justice Connors concurred in the judgment and opinion.

OPINION

¶1 Respondent, Mika J. Vondra, appeals the circuit court’s judgment in a marriage

dissolution proceeding, specifically the court’s characterization and distribution of various assets

pursuant to section 503 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS

5/503 (West 2014)). On appeal, respondent contends (1) she is entitled to the reimbursement of

$253,000 she contributed in nonmarital funds to pay down the mortgage on the marital residence

and (2) the trial court erred in classifying respondent’s Madison Avenue IRA No. 6863 (IRA No. 1-15-0793

6863) and the American Enterprise CD No. 6714 (6714 CD) as marital property. For the

following reasons, we affirm.

¶2 JURISDICTION

¶3 The trial court entered the final judgment for dissolution of marriage on February 17,

2015. Respondent filed her notice of appeal on March 18, 2015. Accordingly, this court has

jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final

judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

¶4 BACKGROUND

¶5 The following facts are relevant to this appeal. The parties were married on October 29,

1988, and two children were born during the marriage. Both were emancipated at the time of the

dissolution proceedings. Petitioner filed his petition for dissolution of marriage on October 28,

2010, and a trial was held in which the court received evidence and heard testimony and arguments

of counsel. Petitioner is employed as a documentation engineer earning approximately $92,000

per year. Respondent works several part-time jobs earning approximately $25,000 per year.

During the marriage, the parties owned a residence located at 703 Nichols Road in Arlington

Heights, Illinois. An appraisal determined that the residence was worth $480,000 and had a

mortgage balance of $24,936.16 at the time of trial.

¶6 At trial, respondent testified that in July of 1996, she received $200,000 which she placed

into a First Security account (Sabadazka gift). The amount consisted of a $175,000 inheritance

from her father and a $25,000 gift from her mother. She testified that she did not intend any gift

to petitioner when she received this money. Respondent testified that she deposited $175,000

from the First Security account into a joint account to pay down the mortgage on the Nichols

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Road house, which she paid the following day. She informed petitioner of her actions. The

payment, processed on July 29, 1996, reduced the mortgage balance from $310,950 to $135,950.

¶7 Respondent also received approximately $167,000 after the death of family friend

Barbara Ganzert, which she placed in a trust account in her name (Ganzert funds). From this

inheritance, respondent used $78,000 to further pay down the mortgage on the Nichols Road

house. These payments were documented in respondent’s Exhibit 66 which showed the mortgage

payment history on the house. Respondent testified that she did not intend any gift to petitioner

when she made these payments from her trust account. Petitioner, however, had no recollection

that respondent received the Sabadazka gift or the Ganzert funds and did not recall whether

respondent paid down the mortgage using those moneys.

¶8 Evidence presented at trial showed that the 6714 CD was issued to “MIKA J. VONDRA

or DAVID W. VONDRA” on September 19, 2009, in the amount of $144,706. Respondent

testified that she gave petitioner permission to transfer $141,000 from her trust account to the

6714 CD. On March 19, 2011, respondent cashed the certificate and deposited $149,056.22 into

a savings account in her name at Chase Bank. Respondent testified that the 6714 CD funds came

from a combination of money from the Sabadazka gift and money she was holding for her

mother. The parties stipulated that after respondent cashed in the certificate, petitioner did not

have access to the funds. To rebut the presumption that the 6714 CD was marital property,

respondent submitted evidence that the funds used to purchase the CD came from her trust

account.

¶9 Also presented into evidence were a Madison Avenue Securities IRA in petitioner’s name

(No. 6855) with a value of $42,356.03 and a Madison Avenue Securities IRA in respondent’s

name (No. 6863) with a value of $79,189.61. Respondent testified that her Madison Avenue IRA

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came from her employment at Urban Development, where she ceased working after her child

was born in 1991. She testified that she had this IRA prior to her marriage and, although she

made some contributions to it during the marriage, she had never taken money out.

¶ 10 At the proceedings, respondent made a claim for the reimbursement of $253,000,

representing the amount of nonmarital funds she used to pay down the mortgage. The trial court

determined that the funds comprising the Sabadazka gift and Ganzert funds were nonmarital

property pursuant to section 503(a)(1) of the Act. It denied respondent’s claim, however, finding

that pursuant to section 503(c)(1) and (2), she transmuted those funds into marital property by

“(a) depositing the Sabadazka Gift into the joint checking account and paying down the

mortgage balance and (b) Using the Ganzert funds to pay down the mortgage balance on the

marital residence.”

¶ 11 The trial court also determined that the 6714 CD was marital property because it was

originally opened “under both parties’ names.” Although the trial court found it “probable that

some or even most of the funds” used to purchase the 6714 CD came from respondent’s

nonmarital trust account, respondent failed to rebut the presumption that the 6714 CD was

marital property. It reasoned that “[t]he act of purchasing [the 6714 CD] and placing ownership

of that certificate in the parties’ joint names creates the presumption of a gift to the marital estate.

There is frankly no evidence which rebuts this presumption.” The trial court also noted that the

6714 CD was held jointly from September 19, 2009, to March 19, 2011. Regarding the parties’

Madison Avenue IRAs, the trial court’s order stated that “[t]he parties stipulate that the entire

interest in the plan is marital property subject to division by the court.” Respondent filed her

timely appeal.

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¶ 12 ANALYSIS

¶ 13 Respondent first contends that the trial court erred in denying her reimbursement claim

for the $253,000 she used from the Sabadazka gift and Ganzert funds to pay down the mortgage

on the marital residence during the parties’ marriage. The trial court determined that all funds

from the marital residence were marital property. A reviewing court will not disturb the trial

court’s classification of property unless its determination is against the manifest weight of the

evidence. In re Marriage of Blunda, 299 Ill. App. 3d 855, 861 (1998). A ruling is against the

manifest weight of the evidence if the opposite conclusion is clearly evident or the findings are

unreasonable, arbitrary, or not based on the evidence. Maple v. Gustafson, 151 Ill. 2d 445, 454

(1992).

¶ 14 Section 503(a) of the Act provides that “[f]or purposes of the Act, ‘marital property’

means all property *** acquired by either spouse subsequent to the marriage.” 750 ILCS

5/503(a) (West 2014). However, “property acquired by gift, legacy or descent” or property

acquired in exchange for such property is nonmarital property. 750 ILCS 5/503(a)(1) (West

2014). Furthermore, “[w]hen marital and non-marital property are commingled by contributing

one estate of property into another resulting in a loss of identity of the contributed property, the

classification of the contributed property is transmuted to the estate receiving the contribution.”

750 ILCS 5/503(c)(1) (West 2014). Transmutation is based on the presumption that the owner of

the nonmarital property intended to make a gift of it to the marital estate. In re Marriage of Benz,

165 Ill. App. 3d 273, 279 (1988). Thus, the placement of nonmarital property in joint tenancy or

other form of joint ownership with a spouse “will raise a presumption that a gift was made to the

marital estate, and the property will become marital property.” Id. at 280. The donor spouse,

however, may rebut this presumption with clear and convincing evidence. Id.

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¶ 15 Here, the trial court properly found that the Sabadazka gift and Ganzert funds were

respondent’s nonmarital property. It also properly found that by using those moneys to pay down

the mortgage on the jointly held marital residence, a presumption arose that respondent intended

to make a gift to the marital estate. See In re Marriage of Durante, 201 Ill. App. 3d 376, 382

(1990) (use of nonmarital funds to purchase ownership in a residence which was conveyed to

both parties as joint tenants created a rebuttable presumption of transmutation and gift to the

marital estate). The question is whether respondent presented sufficient evidence to rebut this

presumption.

¶ 16 The only evidence respondent presented to rebut the presumption of transmutation is that

she did not intend for the payments to be gifts. However, although respondent testified that she

told petitioner of her payments, she did not state that she informed him at the time that she did

not intend for the payments to be gifts to the marital estate. Petitioner testified that he had no

knowledge of whether respondent received the Sabadazka gift or the Ganzert funds or whether

she paid down the mortgage using money from those nonmarital funds. Such evidence is

insufficient to overcome the presumption of transmutation. See In re Marriage of Hacker, 239

Ill. App. 3d 658, 664-65 (1992) (presumption not rebutted where the only evidence presented

was testimony that at the time the parties purchased the marital residence respondent did not

intend to make a gift of his contribution); Durante, 201 Ill. App. 3d at 382 (presumption not

rebutted where respondent testified that although she placed her nonmarital property in joint

tenancy, she intended for the property to stay in the family).

¶ 17 Respondent, however, argues that she sufficiently rebutted the presumption because the

nonmarital funds she used were traceable and she placed the funds in a joint account temporarily

as a conduit to make the payments. As support, respondent cites a list of cases including In re

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Marriage of Heroy, 385 Ill. App. 3d 640, 673 (2008), in which this court held that “[a]lthough

the placement of nonmarital funds into a joint checking account may transmute the nonmarital

funds into marital property [citations], nonmarital funds that are placed into a joint account

merely as a conduit to transfer money will not be deemed to be transmuted into marital property.

[Citations.]” In Heroy and the other cases cited in respondent’s brief, the party took nonmarital

funds, placed those funds temporarily in a joint account, and then used the funds to purchase

nonmarital property. These cases are inapposite. Unlike Heroy, respondent here took nonmarital

funds and used those funds to pay the mortgage on property jointly held by both parties. In this

situation, a rebuttable presumption arises that the nonmarital property transmutes into marital

property. Benz, 165 Ill. App. 3d at 280. As discussed above, respondent did not rebut the

presumption with clear and convincing evidence. We find that the trial court’s denial of her

claim for reimbursement was not against the manifest weight of the evidence.

¶ 18 Likewise, respondent has failed to rebut the presumption that the 6714 CD was marital

property. Although respondent testified that the money used to purchase the 6714 CD came from

her nonmarital funds (Sabadazka gift and money from respondent’s mother), the CD was issued

to “MIKA J. VONDRA or DAVID W. VONDRA.” The CD was jointly held by the parties for

almost two years until March 19, 2011, when respondent cashed the certificate and deposited

$149,056.22 into a savings account in her name at Chase Bank. To rebut the presumption that the

6714 CD was marital property, respondent presented evidence showing that the funds used to

purchase the CD came from her trust account and she testified that she did not intend a gift to the

marital estate; instead, petitioner purchased the CD on his own. As discussed above, the use of

nonmarital funds to purchase jointly held property during the marriage does not rebut the

presumption; rather, it creates a rebuttable presumption of a gift to the marital estate. See

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Durante, 201 Ill. App. 3d at 381-82; Benz, 165 Ill. App. 3d at 280. Furthermore, respondent

testified that she gave permission for petitioner to purchase the jointly held 6714 CD using funds

from her trust account. Although respondent contends that she did not intend to make a gift, it is

the function of the trial court to resolve conflicting testimony, assess the credibility of the

witnesses, and give weight to their testimony. Benz, 165 Ill. App. 3d at 280. Here, the trial court

resolved any conflicts on this issue in favor of petitioner, and its finding is not against the

manifest weight of the evidence.

¶ 19 Respondent also argues that the proceeds from the 6714 CD “no longer exist[ ],” and the

trial court erred in distributing proceeds that no longer exist. Respondent presents this argument

without citation to authority or more extensive analysis in violation of Illinois Supreme Court

Rule 341(h)(7) (eff. Jan. 1, 2016) (argument “shall contain the contentions of the appellant and

the reasons therefor, with citations of the authorities and the pages of the record relied on”). In

her reply brief respondent does cite two cases, with no analysis, that we find are distinguishable

from this case. In any event, points not argued in respondent’s main brief “are waived and shall

not be raised in the reply brief.” Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016). For these reasons, the

trial court’s designation of the 6714 CD as marital property was not against the manifest weight

of the evidence.

¶ 20 Respondent’s final contention is that the trial court erred in finding that, by stipulation of

the parties, respondent’s Madison Avenue IRA from her former employer was marital property.

She argues that she acquired the IRA prior to her marriage and she never took any distributions

or loans from the account. She further contends that no stipulation can be found in the record,

proving that the stipulation never existed.

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¶ 21 In general, “a party cannot dispute on appeal matters to which he has stipulated.” Charter

Bank & Trust of Illinois v. Edward Hines Lumber Co., 233 Ill. App. 3d 574, 580 (1992). In

reviewing the parties’ arguments on the issue in the record, there was a question as to whether a

portion of respondent’s Madison Avenue IRA was marital property. The parties argued the issue

in closing arguments, but the trial court did not make a determination at that time. Instead, the

court informed the parties that it would not make any rulings without first conducting a hearing

on the fee petitions which it would do at a future date. We presume the trial court held those

hearings and made its rulings, although no transcript of the proceedings is in the record.

Respondent as appellant has the duty to present a complete record on appeal, “and in the absence

of an adequate record, it will be presumed that the trial court’s judgment conforms to the law and

has a sufficient factual basis.” Salazar v. Wiley Sanders Trucking Co., 216 Ill. App. 3d 863, 868

(1991). The trial court’s February 17, 2015, order states that the parties stipulated that their

respective Madison Avenue IRAs were marital property. Since respondent failed to include a

record for the proceeding in which that stipulation may have occurred, any resulting doubt is

resolved against respondent as appellant. Id.

¶ 22 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 23 Affirmed.

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